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The good-faith recruitment requirement is the regulatory cornerstone of PERM certification, a mandatory step in the Program Electronic Review Management that precedes most employment-based green card petitions — especially in the EB-2 and EB-3 categories. A U.S. employer sponsoring a foreign worker must demonstrate, with documentary evidence, that it conducted a genuine hiring process and that no U.S. worker who was able, willing, qualified, and available was found for the offered position.
The rule is established in 20 CFR 656, a regulation issued by the Department of Labor (DOL) and enforced by the Office of Foreign Labor Certification (OFLC) through the FLAG — Foreign Labor Application Gateway portal, which receives Form ETA-9089. A thorough understanding of the good-faith concept is critical for both the employer and the sponsored foreign professional, since procedural failures can derail the entire permanent residency process.
What Good-Faith Recruitment Means
Good-faith recruitment, in the PERM context, means the employer must genuinely test the U.S. labor market for the position it intends to fill with a foreign worker. Formally checking the boxes required by the DOL is not enough: the process must, in substance, offer qualified U.S. workers a genuine opportunity to be hired.
The Board of Alien Labor Certification Appeals (BALCA) case law has established that good faith is assessed in its totality: a realistic job description, broad outreach, objective résumé review, reasonable contact with candidates, and complete documentation. Any indication that the company created artificial barriers — inflated requirements, restrictive clauses, failure to respond to applicants — may constitute bad faith and lead to denial of the Application for Permanent Employment Certification.
Mandatory Recruitment Steps
For professional positions (which typically require at least a bachelor’s degree), 20 CFR 656.17(e)(1) mandates a minimum set of recruitment actions that must be completed within a window of 30 to 180 days before filing the ETA-9089:
- Job Order: mandatory posting of the position with the State Workforce Agency (SWA) in the state where the work will be performed, for at least 30 consecutive days;
- Newspaper advertisements: two advertisements in a newspaper of general circulation, on two different Sundays, in the applicable labor market;
- Notice of Filing: an internal notice posted for ten business days at the employer’s premises, summarizing the offered wage and instructions for submitting résumés to the Certifying Officer;
- Three additional steps: chosen from among the employer’s website, job boards, university recruitment, private agencies, radio or television ads, job fairs, employee referral programs, ethnic outreach, or other methods permitted under the rule.
For non-professional positions, the requirements are less extensive, but the 30-day Job Order and the internal notice remain the central pillars.
The Prevailing Wage as a Starting Point
Before any recruitment begins, the employer must obtain a Prevailing Wage Determination (PWD) issued by the National Prevailing Wage Center. The wage offered for the position cannot fall below the PWD, or the entire process is invalidated. The PWD is derived from the Occupational Employment and Wage Statistics (OEWS) data published by the Bureau of Labor Statistics and accounts for the complexity level of the role (Wage Levels I through IV).
This figure will govern all job postings. A discrepancy between the wage declared in the PWD and the wage published in any recruitment channel is one of the most frequent triggers for a FLAG audit.
Résumé Review and Candidate Contact
Upon receiving résumés, the employer must evaluate them against the minimum requirements published in the job posting. The DOL rule is strict: a U.S. worker may only be rejected for reasons directly related to specific, job-related qualifications. Rejections based on pretext, on requirements that emerged after the process began, or on undocumented subjective criteria are considered bad faith.
The employer is required to contact candidates who appear to meet the minimum requirements. Interview invitations — by phone, email, or video conference — must be sent within a reasonable timeframe. Delays of more than 30 days in responding to candidates are frequently cited by the DOL as evidence of a lack of genuine interest.
Documentation and the Recruitment Report
All evidence of the process must be consolidated into a Recruitment Report, a document signed by the employer and retained on file for at least five years from the filing date, pursuant to 20 CFR 656.10(f). The report must describe:
- Each recruitment step conducted, with dates and channels used;
- Total number of applicants received;
- Number of U.S. applicants interviewed;
- An objective, job-requirement-based reason for rejecting each qualified U.S. applicant;
- Copies of all advertisements, screenshots of the Job Order, proof of the Notice of Filing posting, and correspondence with candidates.
The DOL may audit any case, either at random or on a targeted basis, and the employer has 30 days to produce the complete documentation. Failure to deliver the files within that deadline is, in practice, equivalent to certification denial.
Mistakes That Undermine Good Faith
A review of BALCA decisions reveals recurring patterns that lead to PERM denial:
Inflated or Non-Standard Requirements
The DOL considers the qualifications described in O*NET for the position’s Standard Occupational Classification (SOC) code to be the market standard. Requiring a master’s or doctoral degree for a role typically performed with a bachelor’s degree, or demanding an unusual combination of skills without documented business justification, triggers a business necessity review. Without robust technical documentation of that necessity, the requirement is treated as an artificial restriction.
Prohibitory Language in Advertisements
Terms such as green card holder, U.S. citizen only, or any discriminatory reference based on age, gender, or national origin — in any recruitment channel — invalidate the process. The DOL applies a literal reading: inadvertent inclusion is sufficient to generate a denial.
Inconsistent Wages
Every advertisement must be consistent with the PWD. Publishing a lower wage in a newspaper and a higher wage on the corporate website, or vice versa, is a frequently penalized error.
The 180-Day Window Exceeded
Recruitment must be completed between 180 and 30 days before filing. Petitions submitted outside this window are automatically rejected, with no right to redo only the expired steps.
Incomplete Documentation
Missing proof of the Job Order posting, lack of photographic evidence of the Notice of Filing, or the absence of email logs with candidates are classic causes of audit failure.
Audits and Oversight
The DOL initiates audits through two channels. The first is random, as part of the OFLC’s preventive compliance program. The second is targeted, triggered by inconsistencies detected by the FLAG system: an overly specific job description, a wage close to the PWD minimum, an unusual number of rejected candidates, or employers with a history of violations.
In a targeted audit, the Certifying Officer may require Supervised Recruitment, in which the entire recruitment process is redone under the direct supervision of the DOL. This is the most severe measure short of outright denial and typically adds six to twelve months to the PERM timeline.
Why This Matters for the Foreign Worker
Although the technical obligation falls on the employer, the sponsored foreign worker is the party most affected by good-faith recruitment failures. A PERM denial means losing the priority date from that petition, a delay across the entire green card timeline, and in many cases the need to restart the certification process from scratch. For nationals of countries with significant retrogression in the Visa Bulletin — such as India, China, and, to a lesser extent, Brazil in certain categories — that delay can mean years of additional waiting.
For this reason, candidates pursuing employer-sponsored green cards should verify that the company’s legal department or immigration law firm follows rigorous recruitment protocols, maintains systematic filing, and uses up-to-date Recruitment Report templates. Preventive due diligence is far less costly than rebuilding a case after an audit.
Victoria Harper
Editor-in-Chief
Leading journalism and editorial content at Visto n’ Visa, Victoria helps make immigration topics clear, trustworthy, and easy to understand. Her focus is on delivering useful, human, and relevant content for people exploring new paths abroad.
